Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., dissolving an attachment upon property belonging to the defendant Nash. Affirmed.

Geo. R. Robinson and A. H. Young, for appellant.

In England the right to a civil remedy for an injury growing out of a criminal or felonious act is postponed until the public injury is satisfied. 1 Addison, Torts, 54, § 45, but in this country both remedies, the public by criminal prosecution of the offender, and the private by civil action, may be prosecuted at the same time. 1 Bishop, Crim. Law, § 264. The act complained of in the complaint and set out in the affidavit for attachment resulted in injury, especially of this plaintiff, and as such he is entitled to recover. First National v. Harper, 61 Minn. 375; Rochester v. Loomis, 45 Hun, 93; Moseby v. Williamson, 5 Heisk. 278. The defendants perpetrated a gross fraud on plaintiff in receiving his money. Craigie v. Hadley, 99 N. Y. 131; Anonymous, 67 N. Y. 598. The defendant in this case would have been liable if only negligence were charged. Delano v. Case, 121 Ill. 247. If liable for a wrong of omission it is preposterous to say that for a wrong willfully and knowingly committed the defendant could not be held responsible in damages. Attachment is a remedy allowed in cases of tort. Cole v. Aune, 40 Minn. 80.

Steele & Megaarden, for respondents.

1. There is no authority at common law, by statute or contract, whereby this action can be maintained. Zinn v. Mendel, 9 W. Va. 580. To the same effect are: 3 Thompson, Corp. § 4137; Frost v. Foster, 76 Iowa, 535; Fusz v. Spaunhorst, 67 Mo. 256; Priest v. White, 89 Mo. 609; National v. Peters, 44 Fed. 13; Smith v. Poor, 40 Me. 415; Branch v. Roberts, 50 Barb. 435; 1 Beach, Priv. Corp. § 255; Salmon v. Richardson, 30 Conn. 360; Vose v. Grant, 15 Mass. 505; Crown v. Brainerd, 57 Vt. 625. The appellant rests his case solely on the criminal statute, Laws 1895, c. 219, which makes it a felony for any director, officer, etc., to receive money when the bank is insolvent. This law does not expressly create any civil liability, nor did the legislature intend by its enactment to create any civil

liability, so far as the person receiving the money is concerned, for if it did it would have said so.

2. It is not alleged that respondent did or said anything that induced appellant to deposit his money in this bank, and there is no contract either expressed or implied or alleged as existing between appellant and respondent. There is no privity of contract between them. National v. Peters, supra. When defendant traverses the affidavit for attachment denying the grounds alleged and the trial court dissolves the attachment, the appellate court will not reverse the order when the affidavits conflict, unless the clear preponderance of the evidence is opposed to the decision of the court below. Rosenberg v. Burnstein, 60 Minn. 18. The cases cited by appellant are not applicable to this case. First National v. Harper, 61 Minn. 375, cited by appellant, rests on G. S. 1894, § 2600, subd. 3, and has no application to banks or bank directors.

START, C. J.

This action, and the one entitled Baxter v. Coughlin, supra, page 1, are one and the same. This is an appeal from an order dissolving an attachment issued therein upon the sole ground that "the plaintiff's debt was fraudulently contracted." The character of the plaintiff's alleged cause of action is discussed and determined in the decision referred to.

The language of the statute (G. S. 1894, § 5289), allowing an attachment where "the plaintiff's debt was fraudulently contracted," is to be liberally construed, so as to include debts fraudulently created or incurred. Cole v. Aune, 40 Minn. 80, 41 N. W. 934. The plaintiff's cause of action, however, does not fall within even this liberal construction, for it is founded solely in tort. It did not grow directly or indirectly out of any contractual relations between the parties hereto, but out of a violation by the defendants of a statute prohibiting them, as directors of a bank, from receiving deposits therein, knowing it to be insolvent. The plaintiff's contract for the deposit was with the banking corporation, not with the defendants, and his claim against them is for consequential damages which he has sustained by their violation of a penal statute; because, if they had observed the statute, the contract would never have been made.

Such claims cannot be metamorphosed into "a debt fraudulently" contracted by the most heroic construction. See Drake, Attachm. § 77.

Order affirmed.

CHARLES ANDERSON and Others v. LUTHER MINING COMPANY and Others.1

November 9, 1897.

Nos. 10,624-(9).

Mining Lease Specific Performance-Laches-Change of Circumstances.

Diligence is required of one who seeks equitable relief, such as specific performance of a contract, for if, through unnecessary and unexplained delay, the value of the property involved has greatly increased or the circumstances have changed, so that an injustice will be done to allow such equitable relief, it will not be granted.

Same-Waiver by Abandonment.

So, if a party seeking relief has failed to assert his claim and has permitted others to go into possession, and in any manner greatly increase or add to the value of the property, while he has stood by in silence, he must be deemed to have waived and lost his equitable interests. And he may also waive and lose these rights by abandonment.

Same Evidence.

Held, upon such findings of fact in this case as were supported by the evidence, that the plaintiffs were not entitled to relief as against defendants.

Appeal by plaintiffs from an order of the district court for St. Louis county, Ensign, J., denying their motion for a new trial. firmed.

Cotton, Dibell & Reynolds, for appellants.

Af

If the deed was not absolutely delivered so as to be the property of the grantee, specific performance will be decreed for its delivery. Hathaway v. Payne, 34 N. Y. 92. See, also, Switzer v. Gardner, 41 Mich. 164; Wood, Landl. & T. § 236. Actions may be instituted in courts of equity for the determination of primary rights alone, in1 Reported in 72 N. W. 820.

volving no ultimate remedy, and forming only the basis of some prospective action. 3 Pomeroy, Eq. Jur. § 1375; Switzer v. Gardner, supra. Such relief may be granted a vendor even where the property involved has been sold. Smith v. Gibson, 15 Minn. 66 (89); 3 Pomeroy, Eq. Jur. § 1400. If the recovery of possession of the instrument were the only purpose of the action, it would be properly an equity case. Knopf v. Hansen, 37 Minn. 215. All causes of action, whether legal or equitable, growing out of the same transaction, may be united. Abbott, Trial Brief, §§ 422, 424. Such has been the rule in this state ever since the adoption of code practice. Mitchell v. Bank, 7 Minn. 192 (252); Montgomery v. McEwen, 7 Minn. 276 (351); Ermentrout v. American, 60 Minn. 418.

The lessee, Brandin, having surrendered his interest in the premises could not be a proper party plaintiff, but was properly made a party defendant, but the objection, having been raised neither by demurrer nor answer, is waived. Moore v. Bevier, 60 Minn. 240. Plaintiffs and Brandin were joint lessees, jointly and severally liable, and, as between themselves, under the doctrine of "equitable conversion," the leasehold interest was personal property. Day v. Perkins, 2 Sandf. Ch. 359. Such is the rule notwithstanding the estate may have been conveyed to the partners by such deed as would at law make them tenants in common. Arnold v. Wainwright, 6 Minn. 241 (358). All the partners' dealings with the leasehold interest were, therefore, dealings with personal property. Boynton v. Page, 13 Wend. 425; Woodward v. Nudd, 58 Minn. 236. The substitution of partners, ipso facto, transfers the title of the partnership property from the old to the new firm. Pease v. Rush, 2 Minn. 89 (107). The retirement of Brandin did not work a dissolution or change the leasehold to real estate, the partnership being a mining partnership. Mining Partn., 17 Am. & Eng. Enc. 868; Skillman v. Lachman, 23 Cal. 199. Upon dissolution of partnership real estate ceases to be personalty. Foster's Appeal, 74 Pa. St. 391; Denver v. Roane, 99 U. S. 355; Rhea v. Tathem, 1 Jones Eq. (N. C.) 290. Tenants in common may divide partnership land by parol agreement. Wood v. Fleet, 36 N. Y. 499; Conkling v. Brown, 57 Barb. 265; Perkins v. Morse, 30 Minn. 11; Donohue v. Ladd, 31 Minn. 244; Brackett v. Gilmore, 15 Minn. 190 (245).

The burden is upon the party claiming an escrow to prove it. Chouteau v. Suydam, 21 N. Y. 179. The indispensable characteristics of an escrow are: (1) That the executed instrument has passed from the control and beyond the recall of the depositor. Cannon v. Handley, 72 Cal. 133; Stone v. Duvall, 77 Ill. 475; Devlin, Deeds, § 324; Prutsman v. Baker, 30 Wis. 644; 6 Am. & Eng. Enc. Law, "Escrow," IV, note 2. (2) That there is a condition precedent to the vesting of title thereunder. Washburn, R. P. 111, 298; Enc. "Escrow," III, 3. (3) That its unauthorized surrender, its loss or destruction by the trustee, does not affect the rights, interest or relations of the parties. Enc. "Escrow" VIII. (4) That it must not be delivered to the vendee or lessee or his agent as the depositary. Minneapolis v. Davis, 40 Minn. 110; Braman v. Bingham, 26 N. Y. 483; Enc. "Escrow," III, 3; Price v. Pittsburg, 34 Ill. 13. The delivery to Marble was a delivery to his principals, and the conditions of such delivery were immaterial, as they could not create an escrow. Minneapolis v. Davis, supra. The lease was put in Marble's hands by the Luther Mining Company. It is settled that it was not an escrow. Souverbye v. Arden, 1 Johns. Ch. 240; Holcombe v. Richards, 38 Minn. 38; Clark v. Gifford, 10 Wend. 310. But if such a condition as that relied on here could be interposed at all to prevent the lessees from taking possession of their muniment of title, it could only be retained to secure the performance of the condition-the payment of the notes-and could not prevent the title passing. Wallace v. Butts (Tex. Civ. App.) 31 S. W. 687; Price v. Pittsburg, supra; Hathaway v. Payne, 34 N. Y. 92; Proprietors v. Hilton, 11 Gray, 407. A deed found in the hands of the grantor is subject to the presumption of nondelivery, but an indenture of lease being of as much interest to the landlord as to the tenant, he has as much occasion as the tenant for its possession. Oneto v. Restano, 89 Cal. 63. The delivery of the lease upon the uncontradicted testimony must be conclusively presumed. Conlan v. Grace, 36 Minn. 276. The fundamental case in this state on the subject of the "delivery of deeds" is Stevens v. Hatch, 6 Minn. 19 (64). See, also, Schmidt v. Schmidt, 31 Minn. 106; Thompson v. Easton, 31 Minn. 99; Gaston v. Merriam, 33 Minn. 271. Delivery to the beneficiary is delivery to the grantee. Holcombe v. Richards,